Go v. Clark County Department of Air Quality et al, No. 2:2019cv01775 - Document 47 (D. Nev. 2020)

Court Description: ORDER Granting 42 Stipulation to File Third Amended Complaint. Signed by Magistrate Judge Daniel J. Albregts on 11/3/2020. (Copies have been distributed pursuant to the NEF - MR)

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Go v. Clark County Department of Air Quality et al Doc. 47 Case 2:19-cv-01775-RFB-DJA Document 47 Filed 11/03/20 Page 1 of 94 1 2 3 4 5 6 BURKE HUBER, ESQ. Nevada Bar No. 10902 RICHARD HARRIS LAW FIRM 801 South Fourth Street Las Vegas, Nevada 89101 Phone: (702) 444-4444 Fax: (702) 444-4455 E-Mail: Burke@RichardHarrisLaw.com Attorneys for Plaintiff 7 8 9 10 11 12 13 14 15 16 17 18 19 20 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ) ) ) Plaintiff, ) ) vs. ) ) CLARK COUNTY; CLARK COUNTY ) DEPARTMENT OF AIR QUALITY; ) CLARK COUNTY OFFICE OF ) DIVERSITY; TED LENDIS, an individual; ) SHAWN MCCRARY, an individual; ) MARCI HENSON, an individual; LETTY ) BONILLA, an individual; SANDRA ) JEANTETE, an individual; DOES 1 through ) 10; ROE ENTITIES 11 through 20, ) inclusive jointly and severally, ) ) Defendants. ) ELAINE GO, an individual; CASE NO: 2:19-CV-01775-RFB-DJA STIPULATION TO ALLOW PLAINTIFF LEAVE TO FILE A THIRD AMENDED COMPLAINT 21 22 23 24 25 26 27 28 1 Dockets.Justia.com Case 2:19-cv-01775-RFB-DJA Document 47 Filed 11/03/20 Page 2 of 94 1 2 Plaintiff, Elaine Go, by and through her counsel of record, Burke Huber, Esq., and Defendants, by and through their counsel of record, Scott R. Davis, hereby stipulate as follows: 3 Plaintiff recently received a right to sue notice from the EEOC and she shall be allowed 4 5 leave to file a third amended complaint (“TAC”) attached as Exhibit 1. Plaintiff shall file the 6 attached TAC within ten (10) days of the signed order. 7 29th Dated this ____ day of October 2020 29th Dated this ____day of October 2020. /s/Burke Huber By: __________________________ Burke Huber Nevada State Bar 10902 RICHARD HARRIS LAW FIRM 801 S. 4th Street Las Vegas, Nevada 89101 Attorneys for Plaintiff /s/Scott R. Davis By:___________________________ Scott R. Davis Nevada Bar No. 1565 Deputy District Attorney 500 South Grand Central Pkwy Las Vegas, Nevada 89155-2215 Attorneys for Defendants 8 9 10 11 12 13 14 15 16 17 18 ORDER IT IS HEREEBY ORDERED that Plaintiff shall be allowed to file her Third Amended Complaint attached as Exhibit 1 within ten (10) days of the signed order. 19 20 DATEDthis this_____ 3rd day 2020. DATED dayofofNovember, ___________ ______. 21 22 23 24 ___________________________________ ________________________________ DANIEL J. ALBREGTS JUDGE RICHARD F. BOULWARE II UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page31ofof94 92 EXHIBIT 1 EXHIBIT 1 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page42ofof94 92 1 2 3 4 5 6 7 BURKE HUBER, ESQ. Nevada Bar No. 10902 RICHARD HARRIS LAW FIRM 801 South Fourth Street Las Vegas, Nevada 89101 Phone: (702) 444-4444 Fax: (702) 444-4455 E-Mail: Burke@RichardHarrisLaw.com Attorneys for Plaintiff Exhibit 1 UNITNED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ) ) ) Plaintiff, ) ) vs. ) ) CLARK COUNTY, a political subdivision; ) TED LENDIS, an individual; SHAWN ) MCCRARY, an individual; MARCI ) HENSON, an individual; LETTY ) BONILLA, an individual; SANDRA ) JEANTETE, an individual; DOES 1 through ) 10; ROE ENTITIES 11 through 20, ) inclusive jointly and severally, ) ) Defendants. ) ) ) ) ) ) ) ) ) ELAINE GO, an individual; 25 26 27 28 1 CASE NO: 2-cv-01775-RFB-DJA THIRD AMENDED COMPLAINT FOR: (1) ADA – Discrimination/Failure to Accommodate Against Clark County (2) ADA – Retaliation Against Clark County (3) Disability Discrimination – Violation of NRS 613.330 et. seq. Against Clark County (4) FMLA Interference Against Clark County (5) Intentional Infliction of Emotional Distress Against all Defendants (6) Violation of Title 42 U.S.C. § 1983 Against Clark County (7) ADA – Discrimination Against Clark County re: Termination (8) ADA – Retaliation Against Clark County re: Termination Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page53ofof94 92 1 2 COMES NOW, Plaintiff ELAINE GO, by and through their counsel, BURKE HUBER, ESQ. of the RICHARD HARRIS LAW FIRM, and for her causes of action against Defendants, 3 complains and alleges as follows: 4 JURISDICTION 5 6 7 1. At all times relevant, Plaintiff, ELAINE GO (“Plaintiff”), was and is a resident of Clark County, State of Nevada. 8 2. At all times relevant, Plaintiff, was and is an employee of Clark County. 9 3. At all times relevant herein, upon information and belief, Defendant, Clark County, 10 11 12 13 14 15 is a political subdivision. 4. At all times relevant herein, upon information and belief, Defendant, Ted Lendis (hereinafter “Defendant Lendis”), was and is an employee of Defendant Clark County with the title of supervisor and is a resident of Clark County, State of Nevada. 5. At all times relevant herein, upon information and belief, Defendant, Shawn McCrary (hereinafter “Defendant McCrary”), was an employee of Defendant Clark County 16 with the job title of management analyst/HR liaison and is a resident of Clark County, State of 17 Nevada. 18 19 20 21 22 6. At all times relevant herein, upon information and belief, Defendant, Marci Henson (hereinafter “Defendant Henson”; collectively “Defendants”), was an employee of Defendant Clark County with the job title Director and is a resident of Clark County, State of Nevada. 7. At all times relevant herein, upon information and belief, Defendant, Letty Bonilla 23 (hereinafter “Defendant Bonilla”), was an employee of Clark County with the job title of 24 Principal and is a resident of Clark County, State of Nevada. 25 8. At all times relevant herein, upon information and belief, Defendant, Sandra 26 Jeantete (hereinafter “Defendant Jeantete”), was an employee of Defendant Clark County with 27 the job title of Director and is a resident of Clark County, State of Nevada. 28 2 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page64ofof94 92 1 9. 2 Venue is proper in this judicial district because the complained of conduct occurred in this judicial district. 3 10. The true names and capacities of the Defendants designated herein as Doe or Roe 4 individuals, political subdivisions or corporations are presently unknown to Plaintiff at this 5 time, who therefore sue said Defendants by such fictitious names. When the true names and 6 capacities of these defendants are ascertained, Plaintiff will amend this Complaint accordingly. 7 11. That at all times pertinent, Defendants were agents, servants, employees or joint 8 venturers of Defendant Clark County and one another, and at all times mentioned herein were 9 acting within the scope and course of said agency, employment, or joint venture, with 10 knowledge and permission and consent of all other named Defendants. 11 12. Plaintiff is informed and believes, and thereon alleges, that each of the Defendants 12 were the agents, employees and representatives of the other Defendants and in doing the things 13 hereinafter alleged were in part, acting within the scope and authority of such relationship, and 14 15 in part, acting outside the scope and authority of such relationship, and as such each is 16 responsible and liable in some manner for the occurrences herein alleged and were 17 approximate cause of Plaintiff’s damages as herein alleged. 13. At all times relevant, Plaintiff is and was employed by Defendants as an Air Quality 18 Specialist. 19 20 AMERICANS WITH DISABILITIES ACT VIOLATIONS 21 14. At all times mentioned in this Complaint, Plaintiff suffered from the following 22 disabilities: (1) agoraphobia, (2) anxiety, and (3) panic disorders. 23 15. Plaintiff’s disorders substantially limit the following major life activities: sleeping, 24 thinking, caring for herself, performing manual tasks, speaking, breathing, concentrating, 25 communicating, and working1. 26 27 28 1 See Exhibit B. 3 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page75ofof94 92 1 16. Plaintiff is an Air Quality Specialist whose essential functions include sitting at her 2 desk, evaluating applications for a permit, approving applications for a permit and writing the 3 permits. 4 17. Plaintiff is a qualified individual, who with accommodation, can perform the 5 essential functions of her position as an Air Quality Specialist. 6 18. Plaintiff notified Defendants, Clark County, Lendis, McCrary, Bonilla, Jeantete and 7 Henson of her disabilities and also requested accommodations such as placing Plaintiff’s 8 cubicle away from her supervisor, reducing Plaintiff’s number of adverse assignments or high9 profile cases, reducing the number of meetings between Elaine and her supervisor and/or allow 10 a third party observer to be there during meetings, providing all task instructions in writing, 11 allowing Plaintiff to work one to two days per week from home, allowing her sick time to visit 12 with her therapist2. 13 19. Plaintiff requested accommodations for her disability on the following dates: 14 a. b. c. d. e. f. 15 16 17 18 First Request: September 14, 20173, Second Request: November 8, 20174, Third Request: December 29, 2017,5, Fourth Request: October 25, 20186, Fifth Request: January 17-28, 20197, Sixth Request: April 9, 20198. 20. Defendants Lendis, McCrary, Bonilla, Jeantete and Henson, denied Plaintiff’s 19 20 requests for accommodations and refused to recognize her disabilities on the following dates: 21 a. b. c. d. 22 23 Denial: October 23, 20179, Denial: December 20-21, 201710, Denial: December 22, 201711, Denial: November 30, 201812, 24 2 25 26 27 28 See Exhibit B. See Exhibits A. 4 See Exhibit B and C. 5 See Exhibit D. 6 See Exhibit E. 7 See Exhibit F. 8 See Exhibit G. 9 See Exhibit H. 10 See Exhibit I and J. 11 See Exhibit K. 3 4 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page86ofof94 92 e. Denial: June 14, 201913. 1 2 3 21. Plaintiff’s request to be able to work from home one or two days a week was reasonable because Plaintiff’s essential job functions could be performed remotely. 4 22. Plaintiff’s request that her cubicle being placed away from her supervisor to 5 minimize exacerbating conditions was reasonable because it required that the Defendant 6 expend little to no resources to effect. 7 23. Plaintiff’s request that Defendants, Clark County, Lendis, McCrary, Bonilla, 8 9 10 11 Jeantete and Henson reduce Plaintiff’s number of adverse assignments or high-profile cases was also reasonable because the workload could have been easily absorbed by employees with fewer tasks. 12 24. Plaintiff’s request that Defendants, Clark County, Lendis, McCrary, Bonilla, 13 Jeantete and Henson reduce the number of meetings between Elaine and her supervisor and/or 14 allow a third party observer to be there during meetings was also reasonable because Plaintiff’s 15 supervisor could have easily written tasks in emails or other written form or simply sought a 16 third party to observe and relieve Plaintiff’s symptoms and suffering. 17 25. Plaintiff’s request that all task instructions for tasks to be performed be given to her 18 be in writing is reasonable because of Defendants’ can email tasks, communicate via email and 19 text message and use other available methods of communication. 20 21 22 23 26. Plaintiff’s request that Defendants, Clark County, Lendis, McCrary, Bonilla, Jeantete and Henson allow her sick time to visit with her therapist is reasonable because it would have required little time, improved her symptoms and allowed her to work more freely without missing days due to suffering. 24 27. If Plaintiff’s reasonable requests had been afforded by Defendants, Clark County, 25 Lendis, McCrary, Bonilla, Jeantete and Henson, Plaintiff could have performed the essential 26 27 28 12 13 See Exhibit L. See Exhibit M. 5 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page97ofof94 92 1 functions required as an Air Quality Specialist without suffering, harm and the need to take 2 Family Medical Leave (“FMLA”). 3 28. Defendants, Clark County, Lendis, McCrary, Bonilla, Jeantete and Henson, in fact, 4 even refused to recognize Plaintiff’s agoraphobia, anxiety and panic disorders as “disabilities” 5 6 7 when they denied Plaintiff any accommodations. 29. Plaintiff’s reasonable requests would have allowed Plaintiff to manage her anxiety, reduce her panic attacks, and effectively review and approve permit applications. 8 30. These reasonable requests would have resulted in Plaintiff performing at a higher 9 level and reaching and exceeding her job’s expectations and perform her position’s essential 10 functions. 11 12 13 14 15 31. Defendants, Clark County’s, Lendis’, McCrary’s, Bonilla’s, Jeantete’s and Henson’s refusal to even recognize Plaintiff as disabled and their denial of accommodations constitutes discrimination and a violation of the ADA. 32. Because of Plaintiff’s disability, Defendants, Clark County’s, Lendis’, McCrary’s, 16 Bonilla’s, Jeantete’s and Henson’s treated Plaintiff in a hostile manner and created a hostile 17 work environment that was severe and pervasive. 18 19 20 33. Defendants Lendis, McCrary, Bonilla, Jeantete and Henson all worked together to deny Plaintiff the protections of ADA, NRS §613.330, and FMLA. 34. Defendant Jeantete, Director of the Office of Diversity, refused to recognize 21 Plaintiff’s (1) agoraphobia, (2) anxiety, and (3) panic disorders as disabilities and denied her 22 any accommodations pursuant to ADA. 23 24 25 26 35. In November of 2017, Defendant Lendis left work in Plaintiff’s queue while she was on FMLA, causing deadlines to expire An investigator from USDOL later stated that this is a violation of FMLA. 36. In November of 2017, Defendant Lendis left information about Plaintiff’s FMLA 27 leave in a folder designated for public records to be disclosed to the public. 28 6 Case Case 2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document 46-1 47 Filed Filed11/03/20 11/02/20 Page Page108 of of 94 92 1 2 3 37. During the interactive process, Defendant Lendis recommended that Plaintiff’s request for Leave Without Pay be denied because he claimed her work was “untimely.” 38. In February of 2018, Defendant Lendis accused Plaintiff of bias in her processing of 4 applications and explicitly tied his comments to Plaintiff’s requests for accommodations. 5 Defendant Lendis stated that Plaintiff’s initial request for accommodations was invalid. 6 Plaintiff’s job duties are affected as a result because this meant that Defendant Lendis had to 7 approve all of Plaintiff’s work. 8 39. In August of 2018, Defendant Lendis marked Plaintiff down on her performance 9 review for “Professionalism” because Plaintiff “refused to have a meeting under reasonable 10 conditions.” Plaintiff suffered a panic attack and had to leave work using FMLA, and this was 11 12 13 14 held against her. Plaintiff’s job duties and compensation are affected - this was the first time Plaintiff was marked down on a performance review, and it has been used as a launchpad for every subsequent criticism. 15 40. In September of 2018, Defendant Lendis required Plaintiff to attend a “daily 16 production meeting” with Defendant Lendis, to discuss her workload. No other employees are 17 required to have daily meetings. This requirement exacerbates Plaintiff’s condition further 18 (Plaintiff asked for fewer meetings and more written instruction, and they insisted on more 19 meetings and fewer written instructions as a punitive measure). Plaintiff’s job duties are 20 affected as a result — because of her accommodation requests, she is discriminated against and 21 denied autonomy granted to every other employee in her position. 22 23 24 25 26 41. In October of 2018, Defendant Lendis violated Clark County’s Agreement to Remedy by leaving work assigned to Plaintiff during her FMLA leave. Elaine’s job duties are affected - her work is now late as soon as she returns to work, leading to further disciplinary action. 42. In December of 2017, informed Air Quality Director Defendant Henson that she 27 could not return to work without accommodations. As a result, Defendant Henson reclassified 28 Plaintiff’s absences as “unauthorized” rather than “unscheduled” so that Defendant Henson 7 Case Case 2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document 46-1 47 Filed Filed11/03/20 11/02/20 Page Page119 of of 94 92 1 could terminate Elaine after 5 absences. Plaintiff then received the following disciplinary 2 citations: Documented Oral Warning, Admonishment, Written Reprimand. 3 43. In January of 2018, Defendant Henson denies Plaintiff’s request for Leave Without 4 Pay to attend a doctor’s visit because Defendant Henson believed Elaine should have managed 5 6 7 8 her leave balances better. Defendant Henson did not treat similarly situated employees in the same manner. 44. In June of 2018, Defendant McCrary observed Plaintiff waiting for a ride after work. Shortly thereafter, Defendant Henson asked to see Plaintiff’s driver’s license. Defendant 9 Henson did not ask any other employees and did not make a copy. When Plaintiff later asked 10 11 12 13 why this happened, Defendant Henson stated that it’s part of Plaintiff’s job description, when the true purpose was to harass Plaintiff and find a way to terminate Plaintiff. 45. In September of 2018, Defendant was required to attend a “daily production 14 meeting” with her supervisor, Defendant Lendis, to discuss her workload. No other employees 15 are required to have daily meetings. This requirement exacerbates Plaintiff’s condition. 16 (Plaintiff asked for fewer meetings and more written instruction, and they insisted on more 17 meetings and fewer written instructions as a punitive measure). 18 46. In October of 2018, Defendant Henson called Elaine to a meeting. Defendant 19 Henson insisted the meeting is “non-disciplinary” and denied Plaintiff’s request for union 20 representation. Defendant Henson then berated Plaintiff for being “insubordinate” until 21 Plaintiff had a panic attack and is forced to leave work. 22 23 24 25 26 47. Defendant Henson insisted that any leave Plaintiff used for treatment must be scheduled in advance — which was incorrect per FMLA, if treatment is not scheduled/foreseeable. This was done in an effort to hinder Plaintiff’s use of leave and discriminate against Plaintiff. Plaintiff’s benefits are affected - delayed treatment leads to more absences on FMLA. 27 48. In September of 2018, Defendant Henson calls Elaine to a meeting. Ms. Henson 28 insists the meeting is “non-disciplinary” and denied Plaintiff’s request for union representation. 8 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page12 10ofof94 92 1 Defendant Henson then berated Plaintiff and called her “insubordinate” until Plaintiff had a 2 panic attack and is forced to leave work. This was a direct attempt to trigger Plaintiff’s 3 disability and force her to leave. 4 5 6 7 49. During the process of requesting ADA accommodations, Defendant Bonilla played a huge role and part in denying Plaintiff’s requests because Defendant Bonilla claimed that Plaintiff was not disabled and refused to recognize Plaintiff’s disabilities. 50. As a result of the ADA discrimination, failure to accommodate and ADA 8 retaliation, Plaintiff was subjected to different terms and conditions of employment because of 9 her disability. By refusing to recognize Plaintiff as disabled and denying Plaintiff’s 10 accommodations, (1) Plaintiff’s health insurance was negatively affected, (2) Plaintiff lost 11 12 13 14 seniority in her position, (3) Plaintiff lost vacation/sick accrual, (4) Plaintiff lost pension benefits, (5) Plaintiff’s work was deemed late as soon as she returned from FMLA leave while similarly situated employees were given fresh applications with non-expired timelines; (6) 15 Plaintiff was forced to use FMLA leave time, (7) Plaintiff was written up for untimely 16 finishing her work while other employees were not for untimely work, and (8) on January 21, 17 2020, Defendants terminated Plaintiff’s employment. (Plaintiff received new right to sue notice 18 10/21/2020). 19 51. This denial resulted in the following adverse employment actions: (1) Plaintiff’s 20 health insurance was negatively affected, (2) Plaintiff lost seniority in her position, (3) Plaintiff 21 lost vacation/sick accrual, (4) Plaintiff lost pension benefits, (5) Plaintiff’s work was deemed 22 late as soon as she returned from FMLA leave while similarly situated employees were given 23 fresh applications with non-expired timelines; (6) Plaintiff lost FMLA leave time, (7) Plaintiff 24 25 26 27 was written up for untimely finishing her work while other employees were not for untimely work, (8) in December of 2017, Plaintiff wrote Defendant Henson and informed her that she needed accommodations for her disability; in response, Defendant Henson reclassified Plaintiff’s absences as “unauthorized” rather than “unscheduled” so that they could terminate 28 Plaintiff after five (5) absences, (9) Defendants disciplined Plaintiff because of her disability 9 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page13 11ofof94 92 1 and need for accommodations via oral and written warnings, admonishments and written 2 reprimands; these were different terms and conditions specifically inflicted upon Plaintiff 3 because of her disability, and (10) On or around October 24, 2019, Defendants, Clark County, 4 Lendis, McCrary, Bonilla, Jeantete and Henson wrote Plaintiff up for insubordination, which 5 6 7 would not have happened had she not requested accommodations for her disability. 52. Defendants required Plaintiff to exhaust her FMLA leave as a result of their refusal to recognize her disability and denying her accommodations. 8 53. Defendants disciplined Plaintiff because of her disability and need for 9 accommodations via oral and written warnings, admonishments and written reprimands; these 10 were different terms and conditions specifically inflicted upon Plaintiff because of her 11 12 13 14 15 disability and request for accommodations. 54. Defendants also required Plaintiff to use FMLA leave instead of granting her accommodations. 55. On or around October 24, 2019, Defendants, Clark County, Lendis, McCrary, 16 Bonilla, Jeantete and Henson wrote Plaintiff up for insubordination, which would not have 17 happened had she not requested accommodations for her disability. 18 19 56. On January 21, 2020, Defendants terminated Plaintiff’s employment because of her disability. 20 57. Defendants, Clark County’s, Lendis’, McCrary’s, Bonilla’s, Jeantete’s and 21 Henson’s ADA violations, discrimination and failure to accommodate denied Plaintiff 22 compensation and forced Plaintiff to miss 36 full weeks of employment and proximately 23 Plaintiff to lose substantial wages. 24 25 26 58. Defendants, Clark County’s, Lendis’, McCrary’s, Bonilla’s, Jeantete’s and Henson’s ADA violations, discrimination and failures to accommodate inflicted severe emotional distress, mental anguish and other damages upon Plaintiff. 27 59. Plaintiff’s wage loss, pension benefit losses, seniority losses, vacation/sick pay 28 losses, and Plaintiff’s emotional and mental distress losses were a direct and proximate result 10 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page14 12ofof94 92 1 of Defendants, Clark County’s, Lendis’, McCrary’s, Bonilla’s, Jeantete’s and Henson’s 2 violations of the ADA, discrimination and failures to accommodate. 3 4 5 6 7 FMLA VIOLATIONS 60. As a result of Defendants’ failure to recognize Plaintiff as disabled, Plaintiff was forced to use FMLA leave time. 61. In or around September of 2017 through October of 2017, Plaintiff requested time off pursuant to the Family Medical Leave Act (FMLA) and Defendants granted said leave. 8 62. In or around September of 2018 through October of 2018, Plaintiff again requested 9 FMLA leave and Defendants again granted said Leave. 10 63. At the time that Plaintiff requested and used FMLA leave, Plaintiff was entitled to 11 12 13 14 15 16 17 18 19 take FMLA leave. 64. At the time that Plaintiff requested and used FMLA leave, Plaintiff provided sufficient notice of her intent to take leave. 65. Plaintiff used FMLA leave upon it being granted and Defendants Lendis, McCrary, Bonilla, Jeantete and Henson knew that Plaintiff had exercised her right to FMLA leave. 66. During Plaintiff’s FMLA leave, Defendants Lendis, McCrary, Bonilla, Jeantete and Henson denied Plaintiff of her benefits of FMLA leave by interfering with Plaintiff’s time off. 67. Defendant Lendis interfered with Plaintiff’s FMLA by leaving work in Plaintiff’s 20 queue, assigning new work, failing to assign work to other employees and then demanding that 21 the work be done immediately upon return. 22 23 24 25 26 68. This resulted in FMLA leave not truly functioning as intended, which is time off and being totally free from work. 69. As a result of exercising Plaintiff’s rights under FMLA, Defendants Lendis, McCrary, Bonilla, Jeantete and Henson subjected Plaintiff to the following adverse employment actions: (1) counting absences against Plaintiff for benefits, promotions and 27 discipline; (2) disciplining Plaintiff by writing her up upon return from FMLA leave; (3) 28 11 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page15 13ofof94 92 1 writing Plaintiff up for failing to finish all assignments in Plaintiff’s queue upon returning; and 2 (4) refusing to allow Plaintiff total freedom from work while on FMLA leave. 3 4 5 6 7 70. Defendants Lendis, McCrary, Bonilla, Jeantete and Henson committed these acts with the purpose and intent to punish Plaintiff and send a message that if Plaintiff takes FMLA leave, she will be punished with extra work that if not completed on time, will subject her to discipline or termination. 71. When Plaintiff failed to complete the extra tasks assigned to her by Defendant 8 Lendis, she was reprimanded and written up. 9 72. Defendants Lendis, McCrary, Bonilla, Jeantete and Henson adverse treatment of 10 Plaintiff because she exercised her protected right to FMLA leave, resulted in Plaintiff 11 12 13 14 suffering from anxiety, and missing additional days from work. 73. Defendants Lendis, McCrary, Bonilla, Jeantete and Henson counted Plaintiff’s absences against Plaintiff by passing her up for promotions, denying her vacation/sick pay 15 accrual, being written up, and overall fair treatment afforded similarly situated employees who 16 did not take FMLA leave. 17 74. Defendants Lendis’s, McCrary’s, Bonilla’s, Jeantete’s and Henson’s interference 18 with Plaintiff’s FMLA, also resulted in more days missed, and this caused Plaintiff to lose out 19 on retirement benefits, vacation and sick pay benefits. 20 21 22 23 24 25 26 CIVIL RIGHTS VIOLATIONS 75. Plaintiff falls within the protected class of the disabled and Plaintiff has exhausted all of her administrative remedies required by the ADA. 76. Defendants are “persons” pursuant to Section 1983. 77. The Americans With Disabilities Act (ADA) is intended to benefit a class of persons who are disabled. 78. The ADA is a federal statute that creates enforceable rights and Congress has not 27 foreclosed the possibility of Section 1983 remedy for violations of the ADA. 28 12 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page16 14ofof94 92 1 2 3 4 5 6 7 79. Defendant Clark County has a policy that (1) agoraphobia, (2) anxiety, and (3) panic disorders are not “disabilities” afforded protection of the ADA. 80. Defendant Clark County has a custom of punishing and interfering with employees that take medical leave afforded by the Family Medical Leave Act. 81. Defendant Clark County has failed to train its employees with respect to the ADA and FMLA. 82. Defendant Lendis, Defendant McCrary, Defendant Henson and Defendant Bonilla 8 showed deliberate indifference towards Plaintiff’s rights under the ADA and FMLA. 9 83. Defendant Clark County, Defendant Lendis, Defendant McCrary, Defendant 10 Henson and Defendant Bonilla refused to recognize Plaintiff’s agoraphobia, anxiety and panic 11 12 13 14 15 16 17 disorders as disabilities protected by the ADA. 84. Defendant Lendis, Defendant McCrary, Defendant Henson and Defendant Bonilla acted under color of state law when they refused to recognize Plaintiff as a disabled person and afford her the protections and accommodations of the ADA. 85. Defendants acted under color of state law when they terminated Plaintiff’s employment. 18 86. Defendant Lendis, Defendant McCrary, Defendant Henson and Defendant Bonilla 19 acted with the intent and purpose of discriminating against Plaintiff because she was disabled 20 and requested accommodations. 21 87. Plaintiff incorporates paragraphs 35 through 49, which identifies Defendants 22 Lendis’, McCrary’s, Bonilla’s, Jeantete’s and Henson’s role in enforcing Defendant Clark 23 County’s policy of depriving Plaintiff of her protections under the ADA. 24 25 FIRST CLAIM FOR RELIEF (Plaintiff’s Cause of Action for Violation of the ADA – Failure to Accommodate Against Clark County) 26 27 28 88. Plaintiff incorporates by reference all other paragraphs of this complaint as if fully set forth herein and based upon information and belief alleges as follows. 13 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page17 15ofof94 92 1 2 3 4 5 6 7 89. At all times mentioned in this Complaint, Plaintiff suffered from the following disabilities: (1) agoraphobia, (2) anxiety, and (3) panic disorders. 90. Defendants, Clark County, Lendis, McCrary, Bonilla, Jeantete and Henson refused to recognize Plaintiff’s (1) agoraphobia, (2) anxiety, and (3) panic disorders as disabilities under the ADA. 91. Plaintiff made several requests for reasonable accommodations. 92. Plaintiff’s reasonable requests would have allowed Plaintiff to manage her anxiety, 8 reduce her panic attacks, and effectively review and approve permit applications. 9 93. These reasonable requests would have resulted in Plaintiff performing at a higher 10 level and reaching and exceeding her job’s expectations and perform her position’s essential 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 functions. 94. Defendant Clark County had a duty to provide a reasonable accommodation to the disabled. 95. Defendants refused to recognize Plaintiff’s agoraphobia, anxiety and panic disorders as “disabilities” when they denied Plaintiff any accommodations. 96. Defendants required Plaintiff to exhaust her FMLA leave instead of granting her reasonable accommodations and then terminated her employment on January 21, 2020. 97. Because of Plaintiff’s disability, Defendants treated Plaintiff in a hostile manner and created a hostile work environment that was severe and pervasive. 98. Plaintiff was subjected to different terms and conditions of employment because of her disability. 99. As a direct, foreseeable, and proximate result of Defendants, Clark County’s, Lendis’s, McCrary’s, Bonilla’s, Jeantete’s and Henson’s discriminatory acts and failures to accommodate, Plaintiff suffered and continues to suffer, substantial losses in earnings, job benefits, humiliation, embarrassment, and emotional distress, the precise amount of which will 27 be proven at trial. 28 14 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page18 16ofof94 92 1 100. Plaintiff is informed and believes, and thereon alleges, that Lendis, McCrary, 2 Bonilla, Jeantete and Henson committed the acts described herein maliciously, fraudulently, 3 and oppressively, with an improper and evil motive, thus entitling Plaintiff to recover punitive 4 damages from Defendant Clark County in an amount according to proof at trial 5 6 7 101. As a direct and proximate result of Defendants Lendis’s, McCrary’s, Bonilla’s, Jeantete’s and Henson’s actions, Plaintiff sustained damages which include but are not limited to the following: (1) lost wages; (2) lost benefits; (3) lost pension benefits, (4) lost vacation 8 benefits, (5) emotional distress; (6) mental anguish; and (7) a worsening of Plaintiff’s medical 9 condition. 10 SECOND CLAIM FOR RELIEF (ADA Retaliation against Defendant Clark County) 11 12 102. Plaintiff incorporates by reference all other paragraphs of this complaint as if fully 13 set forth herein and based upon information and belief alleges as follows. 14 103. Plaintiff engaged in an activity protected by the ADA when she informed 15 Defendants, Clark County, Lendis, McCrary, Bonilla, Jeantete and Henson about her 16 17 18 19 20 21 disabilities and requested accommodations. 104. Defendants, Clark County, Lendis, McCrary, Bonilla, Jeantete and Henson retaliated against Plaintiff because of her disability and for requesting accommodations for her disability. 105. Defendants, Clark County, Lendis, McCrary, Bonilla, Jeantete and Henson treated 22 Plaintiff in a hostile manner and created a hostile work environment that was severe and 23 pervasive. 24 25 26 27 28 106. As a result of exercising her rights under the ADA, Plaintiff was subjected to different terms and conditions of employment because of her disability. 107. Defendants, Clark County, Lendis, McCrary, Bonilla, Jeantete and Henson refused to recognize Plaintiff as disabled and denied Plaintiff’s accommodations. 108. This denial resulted in adverse employment actions as previously described. 15 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page19 17ofof94 92 1 2 109. But for Defendants’ adverse employment actions, Plaintiff would not have suffered or been subjected to those actions listed in the preceding paragraph. 3 4 5 110. Defendants’ ADA violations, discrimination and failure to accommodate denied Plaintiff compensation and forced Plaintiff to miss 36 full weeks of employment and proximately Plaintiff to lose substantial wages. 6 7 111. Defendants, Clark County’s, Lendis’, McCrary’s, Bonilla’s, Jeantete’s and Henson’s retaliation inflicted severe emotional distress, mental anguish and other damages 8 upon Plaintiff. 9 112. Plaintiff’s wage loss, pension benefit losses, seniority losses, vacation/sick pay 10 losses, and Plaintiff’s emotional and mental distress losses were a direct and proximate result 11 12 13 of Defendants, Clark County’s, Lendis’, McCrary’s, Bonilla’s, Jeantete’s and Henson’s ADA retaliation. 113. Defendants, Clark County, Lendis, McCrary, Bonilla, Jeantete and Henson 14 15 retaliation against Plaintiff constitute violations of the American with Disabilities Act (ADA). 114. As a direct, foreseeable, and proximate result of Defendants, Clark County’s, 16 17 Lendis’s, McCrary’s, Bonilla’s, Jeantete’s and Henson’s ADA retaliation, Plaintiff suffered 18 and continues to suffer, substantial losses in earnings, job benefits, humiliation, 19 embarrassment, and emotional distress, the precise amount of which will be proven at trial. 20 115. As a result of Defendants, Clark County’s, Lendis’s, McCrary’s, Bonilla’s, 21 Jeantete’s and Henson’s ADA retaliation, Plaintiff is entitled to recover attorney’s fees and 22 costs. 23 24 25 26 116. Plaintiff is informed and believes, and thereon alleges, that Defendants Lendis, McCrary, Bonilla, Jeantete and Henson committed the acts described herein maliciously, fraudulently, and oppressively, with an improper and evil motive, thus entitling Plaintiff to recover punitive damages from Defendant Clark County in an amount according to proof at 27 trial 28 16 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page20 18ofof94 92 1 117. As a direct and proximate result of Defendants Lendis’s, McCrary’s, Bonilla’s, 2 Jeantete’s and Henson’s actions, Plaintiff sustained damages which include but are not limited 3 to the following: (1) lost wages; (2) lost benefits; (3) lost pension benefits, (4) emotional 4 distress; (5) mental anguish; and (6) a worsening of Plaintiff’s medical condition. 5 6 7 118. As a direct result of Defendants Lendis’s, McCrary’s, Bonilla’s, Jeantete’s and Henson’s FMLA retaliation and interference, Plaintiff is entitled to lost wages, lost pension benefits, lost vacation and sick pay, and lost wages that would have been earned as a result of 8 being passed up for promotion. 9 10 11 12 13 14 15 16 17 18 19 20 THIRD CLAIM FOR RELIEF (Plaintiff’s Cause of Action for Violation of NRS §613.330 Against Defendant Clark County) 119. Plaintiff incorporates by reference all other paragraphs of this complaint as if fully set forth herein and based upon information and belief alleges as follows. 120. At all times mentioned in this Complaint, Plaintiff suffered from the following disabilities: (1) agoraphobia, (2) anxiety, and (3) panic disorders. 121. Defendants, Clark County, Lendis, McCrary, Bonilla, Jeantete and Henson refused to recognize Plaintiff’s (1) agoraphobia, (2) anxiety, and (3) panic disorders as disabilities under the ADA or NRS §613.330. 122. Defendant Clark County had a duty to provide a reasonable accommodation to the disabled and not treat Plaintiff differently or in a hostile manner because of her disabilities. 21 123. Plaintiff notified Defendants of her disabilities and also requested reasonable 22 accommodations as previously described. 23 124. If Plaintiff’s reasonable requests had been afforded, Plaintiff could have performed 24 25 26 27 28 the essential functions required as an Air Quality Specialist without suffering, harm and the need to take Family Medical Leave (“FMLA”). 125. Plaintiff’s reasonable requests would have allowed Plaintiff to manage her anxiety, reduce her panic attacks, and effectively review and approve permit applications. 17 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page21 19ofof94 92 1 2 126. Plaintiff was subjected to different terms and conditions of employment because of her disability. 3 4 127. By refusing to recognize Plaintiff as disabled and denying Plaintiff’s accommodations, Plaintiff suffered damages as described supra. 5 6 7 128. Plaintiff’s wage loss, pension benefit losses, seniority losses, vacation/sick pay losses, and Plaintiff’s emotional and mental distress losses were a direct and proximate result of Defendants’ discrimination. 8 129. Plaintiff is informed and believes, and thereon alleges, that Defendants Lendis, 9 McCrary, Bonilla, Jeantete and Henson committed the acts described herein maliciously, 10 fraudulently, and oppressively, with an improper and evil motive, thus entitling Plaintiff to 11 12 13 14 recover punitive damages from Defendant Clark County in an amount according to proof at trial. FOURTH CLAIM FOR RELIEF (Plaintiff’s Cause of Action for FMLA Interference against Defendant Clark County) 15 130. Plaintiff incorporates by reference all other paragraphs of this complaint as if fully 16 17 18 set forth herein and based upon information and belief alleges as follows. 131. Defendant Clark County was at all times herein employed more than fifty (50) 19 people at Plaintiff’s work site and therefore are accordingly subject to the provisions of FMLA. 20 At all times herein mentioned, FMLA was in full force and effect and was binding upon 21 Defendant because it regularly employed more than fifty employees. 22 132. At all times material hereto, Plaintiff was an employee of Defendant Clark County 23 and was qualified and eligible to receive leave for a serious health condition under FMLA 24 because she worked for more than 1,250 hours in the year prior to her seeking FMLA leave, 25 Plaintiff was employed by Defendant for more than 1 year, and Defendant engages in the 26 business of interstate commerce. 27 28 133. Defendants, Clark County, Lendis, McCrary, Bonilla, Jeantete and Henson punished Plaintiff for asking and taking FMLA leave. 18 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page22 20ofof94 92 1 2 134. At the time that Plaintiff requested and used FMLA leave, she was eligible for the FMLA’s protections. 3 135. Plaintiff’s employer, Defendant Clark County, is an entity covered by FMLA. 4 136. At the time that Plaintiff requested and used FMLA leave, Plaintiff was entitled to 5 6 7 take FMLA leave. 137. Defendants interfered with Plaintiff’s FMLA by leaving work in Plaintiff’s queue, assigning new work, failing to assign work to other employees and then demanding that the 8 work be done immediately upon return. 9 138. As a result of exercising Plaintiff’s rights under FMLA, Defendants Lendis, 10 McCrary, Bonilla, Jeantete and Henson subjected Plaintiff to the following adverse 11 12 13 14 15 16 employment actions: (1) counting absences against Plaintiff for benefits, promotions and discipline; (2) disciplining Plaintiff by writing her up upon return from FMLA leave; (3) writing Plaintiff up for failing to finish all assignments in Plaintiff’s queue upon returning; and (4) refusing to allow Plaintiff total freedom from work while on FMLA leave. 139. As a direct and proximate result of Defendants Lendis’s, McCrary’s, Bonilla’s, 17 Jeantete’s and Henson’s actions, Plaintiff sustained damages which include but are not limited 18 to the following: (1) lost wages; (2) lost benefits; (3) lost pension benefits, (4) emotional 19 distress; (5) mental anguish; and (6) a worsening of Plaintiff’s medical condition. 20 140. Plaintiff is informed and believes, and thereon alleges, that Defendants committed 21 the acts described herein maliciously, fraudulently, and oppressively, with an improper and evil 22 motive, thus entitling Plaintiff to recover punitive damages from Defendants in an amount 23 according to proof at trial. 24 25 FIFTH CLAIM FOR RELIEF (Plaintiff’s Cause of Action for Intentional Infliction of Emotional Distress Against Defendants Lendis, McCrary, Bonilla, Jeantete and Henson ) 26 27 28 141. Plaintiff incorporates by reference all other paragraphs of this complaint as if fully set forth herein and based upon information and belief alleges as follows. 19 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page23 21ofof94 92 1 142. Defendant Lendis, Defendant McCrary, Defendant Henson and Defendant Bonilla 2 deliberately and specifically intended and acted deliberately to punish and injure Plaintiff by 3 refusing to recognize her as a disabled person and provide requested accommodations. 4 5 6 7 143. Defendant Lendis, Defendant McCrary, Defendant Henson and Defendant Bonilla refused to recognize Plaintiff as disabled and afford her accommodations with the intention of causing Plaintiff to suffer panic attacks, and anxiety and suffer mental anguish. 144. Defendant Lendis’, Defendant McCrary’s, Defendant Henson’s and Defendant 8 Bonilla’s acts of intentionally and deliberately inflicting harm on a disabled person is extreme 9 and outrageous and is utterly intolerable in a civilized society. 10 145. Defendants Lendis, McCrary, Bonilla, Jeantete and Henson all worked together 11 12 13 14 15 and played a vital role in harming Plaintiff. 146. Defendants Lendis, McCrary, Bonilla, Jeantete and Henson all worked together and intended to and did inflict severe emotional distress upon Plaintiff. 147. As a direct, foreseeable, and proximate result of Defendants’ discriminatory, 16 retaliatory and harmful acts, Plaintiff suffered and continues to suffer, substantial losses in 17 earnings, job benefits, humiliation, embarrassment, and emotional distress, the precise amount 18 of which will be proven at trial. 19 148. Plaintiff is informed and believes, and thereon alleges, that Defendants committed 20 the acts described herein maliciously, fraudulently, and oppressively, with an improper and evil 21 motive, thus entitling Plaintiff to recover punitive damages from Defendants in an amount 22 according to proof at trial. 23 24 SIXTH CLAIM FOR RELIEF (Plaintiff’s Cause of Action for Violation of Title 42 U.S.C. § 1983 Against Clark County) 25 26 27 28 149. Plaintiff incorporates by reference all other paragraphs of this complaint as if fully set forth herein and based upon information and belief alleges as follows. 150. Defendants, acting under color of state law, violated Plaintiff’s protected statutory and constitutional rights. 20 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page24 22ofof94 92 1 2 3 4 5 6 7 151. Plaintiff falls within the protected class of the disabled and Plaintiff has exhausted all of her administrative remedies required by the ADA. 152. Defendant Clark County, Defendant Lendis, Defendant McCrary, Defendant Henson and Defendant Bonilla are all “persons” pursuant to Section 1983. 153. The Americans With Disabilities Act (ADA) is intended to benefit a class of persons who are disabled. 154. The ADA is a federal statute that creates enforceable rights and Congress has not 8 foreclosed the possibility of Section 1983 remedy for violations of the ADA. 9 155. Defendant Clark County has a policy that (1) agoraphobia, (2) anxiety, and (3) 10 11 12 13 14 15 16 17 panic disorders are not “disabilities” afforded protection of the ADA. 156. Defendant Clark County has a custom of punishing and interfering with employees that take medical leave afforded by the Family Medical Leave Act. 157. Defendant Clark County has failed to train its employees with respect to the ADA and FMLA. 158. Defendant Lendis, Defendant McCrary, Defendant Henson and Defendant Bonilla showed deliberate indifference towards Plaintiff’s rights under the ADA and FMLA. 18 159. On January 21, 2020, Defendants terminated Plaintiff’s employment. 19 160. Defendant Clark County, Defendant Lendis, Defendant McCrary, Defendant 20 Henson and Defendant Bonilla refused to recognize Plaintiff’s agoraphobia, anxiety and panic 21 disorders as disabilities protected by the ADA. 22 23 24 25 26 161. Defendant Lendis, Defendant McCrary, Defendant Henson and Defendant Bonilla acted under color of state law when they refused to recognize Plaintiff as a disabled person and afford her the protections and accommodations of the ADA. 162. Defendants Lendis, McCrary, Bonilla, Jeantete and Henson all worked together and played a vital role in denying Plaintiff the protections of ADA, NRS §613.330, and FMLA. 27 28 21 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page25 23ofof94 92 1 163. Defendant Lendis, Defendant McCrary, Defendant Henson and Defendant Bonilla 2 acted with the intent and purpose of discriminating against Plaintiff because she was disabled 3 and requested accommodations. 4 5 6 7 164. As a direct and proximate result, Plaintiff’s damages are continuing and shall continue in the future, all to the damage of Plaintiff. 165. Plaintiff is informed and believes, and thereon alleges, that Defendants committed the acts described herein maliciously, fraudulently, and oppressively, with an improper and evil 8 motive, thus entitling Plaintiff to recover treble damages from Defendants in an amount 9 according to proof at trial. 10 11 12 SEVENTH CLAIM FOR RELIEF (Plaintiff’s Cause of Action for ADA Discrimination Against Clark County) 166. Plaintiff incorporates by reference all other paragraphs of this complaint as if fully 13 set forth herein and based upon information and belief alleges as follows. 14 167. Defendant Clark County has a policy that (1) agoraphobia, (2) anxiety, and (3) 15 16 17 18 19 20 21 22 23 panic disorders are not “disabilities” afforded protection of the ADA. 168. Defendant Clark County, Defendant Lendis, Defendant McCrary, Defendant Henson and Defendant Bonilla refused to recognize Plaintiff’s agoraphobia, anxiety and panic disorders as disabilities protected by the ADA. 169. Defendants refused to recognize Plaintiff as disabled and refused her accommodations and required her to use FMLA as an alternative. 170. Once Plaintiff exhausted her FMLA leave, Defendants then proceeded to punish Plaintiff and use this as a pretext to terminate her employment. 24 171. Defendant Lendis, Defendant McCrary, Defendant Henson and Defendant Bonilla 25 acted with the intent and purpose of discriminating against Plaintiff because she was disabled 26 and requested accommodations. 27 28 172. As a direct and proximate result of Defendants’ actions, Plaintiff sustained damages; the precise amount of which will be proven at trial. 22 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page26 24ofof94 92 1 173. Plaintiff will also seek an injunction that her disabilities be properly classified and 2 be afforded her requested accommodations, reinstatement of her employment, attorney fees 3 and costs associated with bringing this action. 4 EIGHTH CLAIM FOR RELIEF (Plaintiff’s Cause of Action for ADA Retaliation against Clark County) 5 6 7 174. Plaintiff incorporates by reference all other paragraphs of this complaint as if fully set forth herein and based upon information and belief alleges as follows. 8 175. Defendant Clark County failed to recognize Plaintiff as disabled. 9 176. Defendants retaliated against Plaintiff for seeking ADA accommodations, and 10 11 12 bringing an action in court, by terminating her employment. 177. Plaintiff is informed and believes, and thereon alleges, that Defendants committed the acts described herein maliciously, fraudulently, and oppressively, with an improper and evil 13 motive, thus entitling Plaintiff to recover punitive damages from Defendants in an amount 14 according to proof at trial. 15 178. Plaintiff will also seek an injunction that her disabilities be properly classified and 16 17 18 19 20 be afforded her requested accommodations, reinstatement of her employment, attorney fees and costs associated with bringing this action. 179. As a direct and proximate result, Plaintiff sustained damages, some damages are continuing and shall continue in the future. PRAYER FOR RELIEF 21 22 23 WHEREFORE, Plaintiff, expressly reserving the right to amend this Complaint prior to or at the time of trial of this action to insert those items of damage not yet fully ascertainable, 24 prays judgment against the Defendants, and each of them, as follows: 25 1. General damages in an amount in excess of $75,000.00; 27 2. Special damages to be determined at the time of trial; 28 3. Any and all Statutory remedies; 26 23 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page27 25ofof94 92 1 4. Punitive damages; 5. Treble damages; 6. Medical and incidental expenses already incurred and to be incurred; 7. Lost earnings and earning capacity; 6 8. Reasonable attorney’s fees and costs of suit; 7 9. Injunctive relief; 10. Declaratory relief; 11. Interest at the statutory rate; and, 11 12. For such other relief as this Court deems just and proper. 12 DATED THIS 23rd day of October, 2020. 2 3 4 5 8 9 10 13 RICHARD HARRIS LAW FIRM 14 Burke Huber 15 ___________________________ BURKE HUBER, ESQ. Nevada Bar No. 10902 801 South Fourth Street Las Vegas, Nevada 89101 Attorney for Plaintiff 16 17 18 19 20 21 22 23 24 25 26 27 28 24 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page28 26ofof94 92 Exhibit A Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page29 27ofof94 92 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page30 28ofof94 92 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page31 29ofof94 92 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page32 30ofof94 92 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page33 31ofof94 92 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page34 32ofof94 92 Exhibit B Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page35 33ofof94 92 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page36 34ofof94 92 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page37 35ofof94 92 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page38 36ofof94 92 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page39 37ofof94 92 Exhibit C Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page40 38ofof94 92 Elaine Go <goelainea@gmail.com> Elaine Go, Second Accommodation Request Ms. Bonilla, I am writing to share my concerns about the accommodation process through the Office of Diversity. My physician recently submitted a second request on my behalf after the first was denied. In the letter denying my first accommodation request, OOD claims that I am able to do my job and therefore my request is not covered by the ADA. This is an incredibly selective reading of the situation. While I am at work, I am able to do my job. However, due to my condition, I am rarely at work. I only go into work when I am feeling well enough to complete my job duties. The stressors I mentioned in my interview with Ms. Pozniak trigger anxiety attacks and I am forced to take time off to recuperate. This is clearly not sustainable. Since September 18th, I have been at work for less than 40 hours total. This should give some indication of how severely my disability impacts my work. When I first came to see Ms. Pozniak, I noted I was on FMLA leave for the disability I was seeking accommodations for. My FMLA leave is now almost fully depleted and I have been unable to accrue any significant sick or vacation time for at least six months due to my condition. My doctor indicated a need for accommodation in her initial letter. OOD chose to ignore this, instead relying on statements made during the inperson interview, where Ms. Pozniak witnessed me having a panic attack and I expressed difficulty communicating. While the meeting was recorded, OOD has not been willing to share this recording with me, so I am unable to further corroborate exactly what was said. The denial letter states that OOD believes my desire for accommodation is based on a workplace dispute or dissatisfaction with my supervisor. I have attached my most recent performance review so you can see that I am not attempting to blame poor performance on my disability. Instead I am trying to ensure future performance at the expected level for an employee in my position. Furthermore, during a phone conversation, Ms. Pozniak indicated that she did not coordinate with Shawn McCrary or any other DAQ or HR staff during the evaluation period. When I asked about the status of my request after two weeks, Ms. Pozniak had yet to meet with you to finalize the decision. It troubles me that it took over two weeks to have a meeting with a supervisor and move my request forward especially when the ultimate decision was to deny my request. In short, I am concerned with the lack of coordination with DAQ, a decision that seems to ignore the evidence and documentation provided, and the decision's untimeliness especially given the minimal effort OOD used to evaluate my situation. From my perspective, OOD's past actions show an irresponsible lack of care and consideration. To prevent further harm, please do not allow this to happen again. My second request has been received by Ms. Pozniak and I hope that you will do everything in your power to expedite it, as I have depleted all available leave balances while trying to resolve this situation. Any further delay is almost certain to result in my discipline or termination due to the use of unprotected Leave Without Pay. If you have additional questions, please ask and I will answer to the best of my ability. If any of my physician's proposed accommodations are unacceptable, I ask that OOD propose alternatives so we can have a truly interactive process in good faith and finally resolve this issue. Thank you. Elaine Go 20170715 Go Elaine Annual Evaluation.pdf 209K Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page41 39ofof94 92 Exhibit D Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page42 40ofof94 92 See correspondence below. We'll let you know of any response. ---------- Forwarded message ---------- Dear Letty: This email is to serve as an additional request for reasonable accommodations for Ms. Elaine Go. Ms. Go began working at the Department of Air Quality as an AQ Specialist II in 2013. Beginning in 2017, Ms. Go's generalized anxiety disorder began exasperating. From March of 2017, Ms. Go has continuously requested accommodations, conversations, and leave. Ms. Go also began the interactive process as required by the ADA. As a result of a failure to accommodate, Ms. Go was forced to exhaust her FMLA and Leave Without Pay. When we spoke last week, you informed us that the County has determined that Ms. Go is not a qualified individual with a disability. As previously explained, Ms. Go is unable to return to work without any accommodation. At this point, Ms. Go exhausted her leave without pay and the county is refusing to provide additional leave. As of now, the County has gone “outside the process,” beginning next week. Ms. Go has not been able to return back to work at this point, and has been told that she is on a progressive discipline policy, where she will be terminated after five absences. First, we do not believe that the County engaged in an ADA-required interactive process, in good faith, thus far. The burden of determining whether an employee is a qualified individual should not be burdensome. The ADA states that, “‘substantially limits’” shall be construed broadly in favor of expansive coverage” and that, “‘substantially limits’ is not meant to be a demanding standard.” Ms. Go met with the Office of Diversity in person and explained her disability. Then, Ms. Go provided medical documentation, which stated that she was substantially limited in performing major life activities. Finally, Ms. Go and OOD had phone conference with us, her counsel. In this meeting, we adequately stated that Ms. Go’s disability substantially limits various major life activities. We were informed a few days later that the County determined she is not a qualified individual with a disability and that the interactive process was over. We asked the County what additional documentation or information it needed to reconsider and continue the process. The County stated that there was nothing else, and that there would be no change in its determination. Thus, the County stopped the interactive process without further exploring or determining how best to help Ms. Go. Second, we would like to reiterate that Ms. Go is a qualified individual with a disability under the ADA. As explained, Ms. Go’s disability substantially limits her ability to sleep, speak, breath, concentrate, and work. These are all major life activities under the ADA. You stated that her disability does not substantially limit her more than the average person because everyone has trouble sleeping and concentrating at times. However, the ADA states that a disability is substantially limiting when an employee is significantly restricted under which she can perform a particular major life activity, as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. The ADA specifically states that an impairment does not need to prevent or severely restrict an individual from performing a major life activity in order to be considered substantially limiting. Thus, we are asking you one more time to reconsider Ms. Go’s reasonable accommodation request. Further, please grant her extended leave. Finally, please do not terminate her. Please let me know if there is any additional documentation or information we can provide. We would like to get this issue resolved as soon as possible, so Ms. Go may return back to work. Thank you very much and Happy New Years. Sincerely, -- Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page43 41ofof94 92 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page44 42ofof94 92 Exhibit E Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page45 43ofof94 92 Ms. Bonilla, I am writing on behalf of Elaine Go, an Air Quality Specialist II at the Clark County Department of Air Quality. Elaine is my spouse. Attached you will nd two documents: 1. A medical Power of Attorney, wherein Elaine grants permission for me to conduct health-related business in her name, and 2. An email from Ted Lendis, Elaine’s direct supervisor, advising her that she may wish to apply for accommodations. As you may recall, Elaine applied for accommodations twice before (September 2017 and November 2017) and was denied both times. The rst time, you stated she was having a con ict with her supervisor. The second time, you stated she was “not disabled” despite documentation from Elaine’s physician and explanation from Elaine’s attorney. Elaine recently returned from Catastrophic Leave after a meeting induced a panic attack that rendered Elaine bedridden for three weeks (September 25 to October 19, 2018). Elaine’s supervisor, with whom she supposedly had a con ict, recognizes Elaine’s disability and the need for accommodations. I want to schedule a meeting wherein I can discuss Elaine’s health condition with the Of ce of Diversity and discuss possible accommodations. I fear that, without accommodations, Elaine will not be able to continue her employment with Clark County in her current position. Please let me know your availability and I will get back to you as soon as I can. This matter is urgent. Thank you, Bill Livolsi elaine health poa.pdf RE_ Injury Report.pdf Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page46 44ofof94 92 Exhibit F Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page47 45ofof94 92 Ms. Bonilla, As we discussed when I met with you on November 13, 2018, OOD believes that Elaine does not have a disability because, despite having a medical condition that substantially limits one or more major life activities, you feel that the condition is “caused” by the situation at work, speci cally Elaine’s supervisor. At the time, I stated that Elaine’s condition is caused by the underlying medical problem, while the situation at work only serves to trigger it. My most recent email of January 17, 2019 demonstrates this conclusively. Elaine was assigned to a different supervisor on January 3, 2019. This supervisor has no history of con ict with Elaine and by all accounts they get along well. However, Elaine’s panic attacks have persisted. This shows that the Of ce of Diversity’s assessment is incorrect — even when removed from the person “causing” the condition, Elaine’s condition has persisted. This should constitute new or updated medical information and should therefore cause the Of ce of Diversity to re-assess Elaine’s quali cation under the Americans with Disabilities Act. Elaine has stated several times that she would be more than capable of performing her job from home on certain days when her condition ares up. Because of OOD’s decision, this option is not available, and Elaine is forced to use FMLA instead. This results in lost work time, depletion of Elaine’s FMLA balance, and lost pay. An accommodation would be bene cial not only to Elaine, but also to DAQ. However, OOD is unwilling to discuss potential accommodations, because you maintain that Elaine is not disabled. Elaine has nearly depleted her FMLA for the year. She currently has 34 hours remaining in her allotment, at which point she will not be entitled to any additional leave until September 2019. DAQ management have stated several times that any requests for Leave Without Pay (LWOP) will be denied. Elaine has already used Catastrophic Leave this year, and even if this option were available, DAQ management is still allowed to deny the underlying LWOP request. Elaine is likely to face discipline or termination if accommodations are not granted. In December 2017, DAQ Director Marci Henson stated that her decision to deny Elaine’s LWOP requests is directly linked to OOD’s assessment that Elaine is not disabled. Therefore, OOD’s decision has not only denied Elaine the accommodations she is entitled to, but also altered the perception of DAQ management and caused signi cant harm to Elaine. I ask that you consider my email of January 17, 2019 as updated medical information. Elaine has already provided two medical certi cations from her physician. She does not have the resources to obtain a third — she has very little FMLA leave remaining, has not accrued suf cient PTO to see her physician, and cannot afford to pay for updated ADA paperwork due to missing 3 months of pay while on FMLA leave. Obtaining another signed ADA packet would constitute a hardship. You previously stated that we are welcome to appeal your decision to the Nevada Equal Rights Commission. With respect, this is not a realistic option for Elaine or other County employees who are struggling to keep their jobs. Elaine appealed to NERC in October 2017, and NERC was unable to assign an investigator until October 2018. That investigation is still ongoing. By asking employees who are already struggling to wait more than a year for a second opinion, you are doing irreparable harm and causing a hardship for employees who assert their rights under the Americans with Disabilities Act. Please consider the information above and get back to me as soon as possible. If you do not feel you are able to evaluate Elaine’s information impartially, I encourage you to assign the case to other personnel. Thank you, Bill Livolsi on behalf of Elaine Go On Jan 25, 2019, at 6:14 PM, Letty Bonilla has any new or updated medical information, please submit directly to me and/or Of ce of Diversity (OOD) for evaluation. As previously communicated to you, OOD's assessment of Elaine Go's request for accommodation and OOD's determination was made in part based on the medical information that we currently have on le up to this point. Therefore, if there is no new or updated medical information for evaluation, I encourage you to please continue to work with Risk Management in regard to FMLA and/or other leave options that may be available and/or Elaine's department administration as may be necessary. As always, if you have any questions or wish to speak to me, feel free to give me a call. Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page48 46ofof94 92 Ms. Bonilla, I am writing on behalf of my wife, Elaine Go, an employee of the Clark County Department of Air Quality. You previously decided that Elaine’s medical condition did not qualify as a disability due to its connection to her supervisor. Elaine has been assigned a new supervisor since the beginning of this year. The panic attacks have persisted. Elaine has now nearly depleted her FMLA allowance for the year and has been using her sick and vacation leave as quickly as it is accrued. If this continues, she will not be able to attend necessary treatment appointments due to lack of available leave. I ask, again, that you revisit your decision to deny Elaine the disability accommodations she has sought since September 2017. Regards, Bill Livolsi Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page49 47ofof94 92 Exhibit G Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page50 48ofof94 92 gov Cc: Elaine Go goelainea@gmail.com Ms. Bonilla, Do you still plan to have an answer for us today, as per your email of June 4? Thanks, Bill Livolsi On Jun 4, 2019, at 5:11 PM, Letty Bonilla <BonillaL@ClarkCountyNV.gov> wrote: Hi Bill, I appreciate your con2nued pa2ence in this ma7er. I did receive your emails men2oned below reques2ng for status update….my apologies for not having responded. It has taken me longer than I expected to get back to you but I want to make sure that I thoroughly review all of the informa2on you provided on April 23, 2019 (including informa2on on le). At this point Bill, I’m asking that you please allow me 2ll the end of next week to get back to you with an answer as to this ma7er (my goal will be sooner nonetheless). Thank your understanding. If you would like to discuss, please feel free to contact me. Letty Bonilla Accommodations - Elaine Go Ms. Bonilla, It has now been six full weeks since our meeting. I have not received any update from you on the status of Elaine Go’s disability accommodations. I previously emailed you on May 24th and May 13th to ask for updates, but did not receive responses. Can you please give me an update on the Office of Diversity’s progress so far? Sincerely, Bill Livolsi On Apr 23, 2019, at 10:10 AM, Letty Bonilla <BonillaL@ClarkCountyNV.gov> wrote: Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page51 49ofof94 92 I will see you at 3pm Bill. Thank you. F S T S Ms. Bonilla, OK, I will see you at 3PM. As I previously stated several times, Elaine has no leave available. I will be meeting with you on Elaine’s behalf and holding her Power of Attorney. Elaine will not be present. Thank you, Bill Livolsi On Apr 23, 2019, at 9:32 AM, Letty Bonilla < wrote: Hello Bill, I can meet with you and Ms. Go today 3pm. Thank you. iversity From: Bill Livolsi [mailto:wlivolsi@gmail.com] Sent: Monday, April 22, 2019 12:50 PM To: Letty Bonilla Subject: Re: Disability Accommodations - Elaine Go In that case, Tuesday afternoon will work. On Apr 19, 2019, at 4:49 PM, Letty Bonilla <BonillaL@ClarkCountyNV.gov> wrote: I have a 10am already scheduled. From: Bill Livolsi [mailto:wlivolsi@gmail.com] Sent: Friday, April 19, 2019 4:46 PM To: Letty Bonilla Cc: Elaine Go; Elaine Go Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page52 50ofof94 92 Cc: Elaine Go; Elaine Go Subject: Re: Disability Accommodations - Elaine Go I would prefer something in the morning- say 10am? Let me know. Thanks. On Apr 19, 2019, at 4:37 PM, Letty Bonilla > wrote: Bill, I’ve been in and out of the o ce and I’m scheduled o on Monday and have mee2ngs on Tuesday but I can make myself available Tuesday aQernoon. Will Tuesday aQernoon work? Thank you. On Apr 19, 2019, at 4:34 PM, Letty Bonilla <BonillaL@ClarkCountyNV.gov> wrote: Hi Bill, can we meet next Wednesday, April 24th in the aQernoon at 3pm? Let me know if this works so that I can put it on my calendar. Thank you. Letty Bonilla Hi Letty, I am available to meet at your earliest convenience, including later today and all day tomorrow. Please let me know your earliest availability. Thank you, Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page53 51ofof94 92 Thank you, Bill Livolsi On Apr 15, 2019, at 8:37 AM, Letty Bonilla <BonillaL@ClarkCountyNV.gov> wrote: Hi Bill, as stated in my email to you dated February 19, 2019, we can schedule a mee2ng to discuss the new informa2on you shared with me regarding “….even when removed from the person ‘causing’ the condi<on, Elaine’s condi<on has persisted”. Please let me know when will be a good date/2me. Thank you. Ms. Bonilla, Please at least confirm receipt of the email below. Thank you, Bill Livolsi On Apr 9, 2019, at 8:16 PM, Bill Livolsi <wlivolsi@gmail.com> wrote: Ms. Bonilla, This afternoon I spoke to Darrell Harris, Supervisory Compliance Inspector at the Nevada Equal Rights Commission, about Elaine Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page54 52ofof94 92 Inspector at the Nevada Equal Rights Commission, about Elaine Go and her accommodation request. According to Mr. Harris, NERC’s position is that, based upon the evidence presented, Elaine Go is a qualified individual with a disability under the definition provided in the Americans with Disabilities Act. Please note that NERC received the exact same medical certification that we provided to the Office of Diversity in November 2017. Elaine Go is therefore eligible for disability accommodations using the November 2017 medical information we provided to OOD. NERC further states that moving Elaine’s cubicle away from her supervisor constituted an accommodation, as did the granting of FMLA leave. Elaine wishes to inform the Office of Diversity that the provided accommodations are insufficient. She again asks the Office of Diversity to continue the interactive process by evaluating the other accommodations she requested in November 2017. We ask that you immediately inform the Department of Air Quality that OOD’s previous determination was incorrect. We also ask that you immediately reopen Elaine Go’s accommodation request so additional accommodations can be provided. Please let me know exactly how you wish to proceed. If you need time to consider your response, please respond immediately to confirm receipt of this email and provide a timeline for a full response. Sincerely, Bill Livolsi on behalf of Elaine Go Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page55 53ofof94 92 On Apr 3, 2019, at 12:10 PM, Bill Livolsi Ms. Bonilla, I never received a response to this. Why does OOD require updated medical information from Elaine? Thanks, Bill Livolsi On Feb 25, 2019, at 11:27 AM, Bill Livolsi wrote: Ms. Bonilla, I understand. However, my question was: why does OOD need updated medicals? Thanks, Bill Livolsi On Feb 21, 2019, at 9:02 AM, Letty Bonilla > wrote: Hello Bill, as previously stated, we can schedule a mee2ng to discuss the new informa2on you reference in your email below. But, please keep in mind that in light of the new informa2on, we will need updated medicals in order to complete a reassessment of Ms. Go’s Request for accommoda2on. Let me know if you want to proceed with the mee2ng. Thank you. Letty Bonilla Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page56 54ofof94 92 Ms. Bonilla, In what way is Elaine’s last medical certification lacking? I have attached a copy for your reference. Please respond as soon as possible. Thank you, Bill Livolsi on behalf of Elaine Go On Feb 19, 2019, at 9:43 AM, Letty Bonilla wrote: Hello Bill, hope that you are doing well. In light of your statements below “…even when removed from the person “causing” the condition, Elaine’s condition has persisted” and wherein you further state that this should constitute new or updated medical information, I would like to meet with you and Ms. Go to discuss this but please understand that our Office will need updated medicals in order to complete a re-assessment of Ms. Go’s request for an accommodation. Please let me know when it is a good date/time to meet to discuss the new information you present below. Thank you. Letty Bonilla Manager, Office of Diversity Clark County Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page57 55ofof94 92 (702) 455-4667 Letty, Please let me know if you will be re-evaluating Elaine’s claim in light of the clarifications I made in my last email. Thank you. Regards, Bill Livolsi on behalf of Elaine Go On Jan 28, 2019, at 9:54 AM, Ms. Bonilla, As we discussed when I met with you on November 13, 2018, OOD believes that Elaine does not have a disability because, despite having a medical condition that substantially limits one or more major life activities, you feel that the condition is “caused” by the situation at work, specifically Elaine’s supervisor. At the time, I stated that Elaine’s condition is caused by the underlying medical problem, while the situation at work only serves to trigger it. My most recent email of January 17, 2019 demonstrates this conclusively. Elaine was assigned to a different supervisor on January 3, 2019. This supervisor has no history of conflict with Elaine and by all accounts they get along well. However, Elaine’s panic attacks have persisted. This shows that the Office of Diversity’s assessment is incorrect — even when removed from the person “causing” the condition, Elaine’s condition has persisted. This should constitute new or updated medical information and should therefore cause the Office of Diversity to re-assess Elaine’s qualification under the Americans with Disabilities Act. Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page58 56ofof94 92 under the Americans with Disabilities Act. Elaine has stated several times that she would be more than capable of performing her job from home on certain days when her condition flares up. Because of OOD’s decision, this option is not available, and Elaine is forced to use FMLA instead. This results in lost work time, depletion of Elaine’s FMLA balance, and lost pay. An accommodation would be beneficial not only to Elaine, but also to DAQ. However, OOD is unwilling to discuss potential accommodations, because you maintain that Elaine is not disabled. Elaine has nearly depleted her FMLA for the year. She currently has 34 hours remaining in her allotment, at which point she will not be entitled to any additional leave until September 2019. DAQ management have stated several times that any requests for Leave Without Pay (LWOP) will be denied. Elaine has already used Catastrophic Leave this year, and even if this option were available, DAQ management is still allowed to deny the underlying LWOP request. Elaine is likely to face discipline or termination if accommodations are not granted. In December 2017, DAQ Director Marci Henson stated that her decision to deny Elaine’s LWOP requests is directly linked to OOD’s assessment that Elaine is not disabled. Therefore, OOD’s decision has not only denied Elaine the accommodations she is entitled to, but also altered the perception of DAQ management and caused significant harm to Elaine. I ask that you consider my email of January 17, 2019 as updated medical information. Elaine has already provided two medical certifications from her physician. She does not have the resources to obtain a third — she has very little FMLA leave remaining, has not accrued sufficient PTO to see her physician, and cannot afford to pay for updated ADA paperwork due to missing 3 months of pay while on FMLA leave. Obtaining another signed ADA packet would constitute a hardship. You previously stated that we are welcome to appeal your decision to the Nevada Equal Rights Commission. With respect, this is not a realistic Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page59 57ofof94 92 Commission. With respect, this is not a realistic option for Elaine or other County employees who are struggling to keep their jobs. Elaine appealed to NERC in October 2017, and NERC was unable to assign an investigator until October 2018. That investigation is still ongoing. By asking employees who are already struggling to wait more than a year for a second opinion, you are doing irreparable harm and causing a hardship for employees who assert their rights under the Americans with Disabilities Act. Please consider the information above and get back to me as soon as possible. If you do not feel you are able to evaluate Elaine’s information impartially, I encourage you to assign the case to other personnel. Thank you, Bill Livolsi on behalf of Elaine Go On Jan 25, 2019, at 6:14 PM, Letty Bonilla > wrote: Hello Bill, I apologize for my delayed response to your email communication below. Please know that if Elaine has any new or updated medical information, please submit directly to me and/or Office of Diversity (OOD) for evaluation. As previously communicated to you, OOD's assessment of Elaine Go's request for accommodation and OOD's determination was made in part based on the medical information that we currently have on file up to this point. Therefore, if there is no new or updated medical information for evaluation, I encourage you to please continue to work with Risk Management in regard to FMLA and/or other leave options that may be available and/or Elaine's department administration as may be necessary. As always, if you have any questions or wish to speak to me, feel free to give me a call. Thank you. Letty Bonilla Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page60 58ofof94 92 Letty Bonilla Diversity -----Original Message----- Ms. Bonilla, I am writing on behalf of my wife, Elaine Go, an employee of the Clark County Department of Air Quality. You previously decided that Elaine’s medical condition did not qualify as a disability due to its connection to her supervisor. Elaine has been assigned a new supervisor since the beginning of this year. The panic attacks have persisted. Elaine has now nearly depleted her FMLA allowance for the year and has been using her sick and vacation leave as quickly as it is accrued. If this continues, she will not be able to attend necessary treatment appointments due to lack of available leave. I ask, again, that you revisit your decision to deny Elaine the disability accommodations she has sought since September 2017. Regards, Bill Livolsi <20171108 return-work-ada.pdf> Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page61 59ofof94 92 Exhibit H Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page62 60ofof94 92 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page63 61ofof94 92 Exhibit I Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page64 62ofof94 92 Hi Bill and Elaine, Just to summarize our conversation we had on the phone and update in your matter. We have been working very hard. As of now, the County appears not willing to continue the interactive process because it does not believe that Elaine is quali ed individual with a disability under the ADA, amongst other arguments the County has advised. However, it has decided to speak to Elaine's supervisor and move her desk, "outside of the process." As such, the failure to return to work will most likely result in the County terminating Elaine. It is imperative and we believe that if Elaine can return to work she should return to work by tomorrow. If she can not medically return to work, make sure that you send, in writing and according to the normal procedure, a request for extension of time off work, continue to le disability bene ts, etc. I know you are out of LWOP and FMLA and we do not want you to lose your job. Let me know if you have any additional questions. Speak soon and reach out to us if you need anything. Best, Liza -- Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page65 63ofof94 92 Exhibit J Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page66 64ofof94 92 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page67 65ofof94 92 Exhibit K Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page68 66ofof94 92 To: Bill Livolsi wlivolsi@gmail.com Sent from my iPhone Begin forwarded message: F gov>, Ted Lendis <Lendis@ClarkCountyNV.gov> Subject: Re: LWOP Request Elaine, The interactive process is complete and you were determined not to be disabled per the standard required in the law and therefore no accommodations will be provided. As a courtesy and outside the ADA process, the department has agreed to relocate your cubicle for a six month trial. The move will take place the rst week in January. My understanding is that this has all been explained to your representatives by the OOD as has the need for you to return to work. As I wrote yesterday, if you choose not to come to work today, you will receive an unscheduled LWOP and will be subject to the progressive discipline process. On a nal note, other than moving your cubicle location, the Department expects for you to return to work and for business to go on as usual. As such, the Department expects to hear from & communicate with you directly and not through Bill or other representatives. You also need to follow the time attendance policy and inform your supervisor and manager (which is me for the time being) when calling in. It’s not necessary to include anyone else in these notices going forward. With all due respect, please stop having Bill communicate with the Department. You are our employee and not Bill. Thank you, Marci Sent from my iPhone On Dec 22, 2017, at 7:18 AM, Bill Livolsi <wlivolsi@gmail.com> wrote: Ms. Henson, Elaine Go cannot come to work today, Friday, December 22nd, 2017. I again ask that you extend Elaine’s Leave Without Pay so that she may complete the interactive process with Clark County in good faith and without fear of termination. Sincerely, Bill Livolsi On Dec 21, 2017, at 7:10 AM, Marci Henson Hi Bill, Elaine will not be granted further LWOP and is expected to return to work this morning at 8:00 am. If she chooses not to return to work today at 8 am she’ll be on unscheduled LWOP and this will start her on the progressive discipline track for time & attendance. Thank you, Marci Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page69 67ofof94 92 Sent from my iPhone On Dec 21, 2017, at 7:04 AM, Bill Livolsi < Ms. Henson, Thank you for your reply. You have indicated that Elaine Go’s request for further Leave Without Pay during the interactive process is denied, and that she must return to work today, Thursday, December 21st at 8:00 AM. On the advice of her doctor, Elaine Go cannot return to work until accommodations are in place. Returning to work without accommodations would put her health at risk. She will therefore not be reporting to work today. I again ask that you extend Elaine’s Leave Without Pay so that she may complete the interactive process with Clark County in good faith and without fear of termination. Sincerely, Bill Livolsi Employee name: Elaine Go Length of time employee expects to be away from work: 8 hours Type of leave requested: sick / LWOP Time emailed: December 21st 7:03 am Return phone On Dec 20, 2017, at 12:59 PM, Marci Henson < wrote: Bill, I’m not approving any addi3onal LWOP. Elaine needs to report to work tomorrow at 8:00 am. OOD has reached out to the Department and they will be in touch with Elaine on the outcome of that discussion. Ms. Henson, Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page70 68ofof94 92 I just left you a voicemail, but I’m sending as an email as well. Yesterday, Ms Bonilla of OOD spoke to Elaine’s attorney and said that a final determination had not yet been made. She stated that she was going to speak to members of Air Quality and get back to us by Friday. Again, I don’t know if this means she will make a final determination or request more information. In short, we are still engaged in the interactive process and are requesting a further extension of Elaine's LWOP. If you have any questions, please feel free to write or call. My number is 702-2079683. Thanks, Bill Livolsi Hi Bill, Thank you for the informa3on. I will approve Elaine for another 24 hours of LWOP star3ng on Monday 12/18 at 8:00am through Wednesday 12/20th 5pm. Let’s re-evaluate where we’re at with the OOD request around noon on Wednesday 12/20/17. I will append this email to my prior approval. Thank you, Marci Henson Director Department of Air Quality 4701 W. Russell Rd, Suite 200 Las Vegas, NV 89118 702.455.3118 mhenson@clarkcountynv.gov mail.com> Subject: Re: LWOP Request Ms. Henson, I gave you a call a few minutes ago, but thought I should email you as well. Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page71 69ofof94 92 well. Elaine had a meeting with Office of Diversity on Tuesday. They said it would take until at least the end of this week before we heard back from them. I called Letty Bonilla of OOD yesterday to see how it was going, and she said we would likely hear back before Wednesday of next week. I still don’t know if that means she will make a determination or just request more info. So in other words, Elaine is still participating in the interactive process and we need to request an extension of her Leave Without Pay. If you have any questions, please feel free to write or call. My number is 702-207-9683. Thanks, Bill Livolsi On Dec 6, 2017, at 11:06 AM, Marci Henson < Thanks Bill. Elaine is approved from 43.75 hours of LWOP star3ng on 12/8/17 at 1:15 pm and ending on 12/15/17 at 5:00pm and she would be expected to return at 8:00am on Monday, 12/18/17. I’m willing to re-evaluate the need for an addi3onal week of LWOP so please check in by noon on the morning of 12/15/17 to give us an update on the progress of the OOD process and to con rm the need for addi3onal LWOP the week of 12/18 – 12/22/17. There’s no need to contact us before noon on 12/15/17 and her absence will be covered by approved LWOP. Thanks, gmail.com] Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page72 70ofof94 92 ; Shawn ine Go Ms. McCrary and Ms. Henson, Thank you for your response. As I understand it, Elaine is approved for LWOP through Friday, 12/15/17, and would be expected to return to work on Monday 12/18. Please let me know if this is incorrect. How often would you like us to check in? I ask because the LWOP memo states that requests should be made at least one week in advance, but our next meeting with OOD will not occur until Tuesday 12/12. I want to ensure you have adequate information to judge any potential future requests, should they be necessary. Thank you, Bill Livolsi On Dec 5, 2017, at 6:25 PM, Elaine Go <goelainea@gmail.com> wrote: ---------- Forwarded message ---------From: Hi Elaine, Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page73 71ofof94 92 Hi Elaine, I have attached the response to your recent LWOP request. Thanks, Shawn ext.1626 ber 29, 2017 5:59 Elaine, I have attached a copy of the LWOP request memo. Additionally, please see the information below regarding LWOP. Thanks. Leave Without Pay Specific to leave without pay (LWOP), please be advised of the following: • Any period during which an employee is on leave of absence without pay for over a period of 21 consecutive calendar days in a calendar year will be deducted from the employee's creditable service for longevity pay; and • An employee on a leave of absence without pay for over 30 consecutive calendar days will be required to pay the entire medical insurance, life insurance, and longterm disability insurance premiums in order to continue coverage in those plans; and • Employees on a leave of absence without pay will not accrue vacation, sick leave, or retirement credits during any such leave Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page74 72ofof94 92 credits during any such leave period. Accommodations Elaine, Thank you for the heads up that you might be requesting LWOP if you exhaust your FMLA leave before you receive a determination on your accommodation request. Please refer to Article 25 of the CBA and Section 5.6 of the Department’s Time and Attendance Policy when the time comes and you’re making your specific LWOP request. While I understand from your email below that your condition is prone to flare ups and you may exhaust your FMLA leave and it may take an additional 2-4 weeks to receive a decision from OOD, I’ll need a more specific LWOP request. Shawn will send you a template LWOP memo that you can use to make your specific request. The DTAP states employees shall make every effort to submit LWOP requests at least one week before the requested start of any period of continuous absence that would include LWOP. As the DTAP states in Section 4.4, it is the employee’s responsibility to accurately track leave balances and for submitting leave requests so please monitor your FMLA leave balance and submit the specific LWOP request approximately one week before your requested start date for LWOP. When we receive your specific request, we’ll review it and I will make a timely decision. Please let me know if you have any questions. Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page75 73ofof94 92 Thanks, From: Elaine Go Se Accommodations Marci and Ted, I am currently pursuing disability accommodations from the Office of Diversity. I have been working on this request since September, but have encountered delays. OOD has indicated that a typical request at this stage takes an additional 2-4 weeks to process and implement. I have asked OOD to expedite the process, but I am concerned that I may exhaust my FMLA leave before my accommodation request has been processed and implemented. I expressed this concern to OOD and they indicated that I should work with my department, so I am now writing to you. My disability is prone to unpredictable flare-ups. Should a flare-up occur between today and the implementation of my disability accommodations, I ask that you use any discretion you have to allow some flexibility regarding LWOP or other unpaid leave. Thanks. <image001.jpg> Elaine Go Air Quality Specialist II pdf> Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page76 74ofof94 92 Exhibit L Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page77 75ofof94 92 Hi Bill, thank you for your pa2ence in this ma7er. I had an opportunity to review the overall informa2on evaluated as part of Ms. Go’s 2017 ADA accommoda2on request(s) as I communicated to you that I would. Based on my review of the overall informa2on including the informa2on obtained/discussed in our November 13, 2018 mee2ng, the informa2on obtained from the previous interac2ve mee2ngs, and the medical informa2on on le, I have reached the same determina2on, speci cally, that while Ms. Go does have an impairment, it does not rise to the level of a disability under the ADA, as she is not substan2ally limited in a major life ac2vity. If you disagree with this decision and/or if you believe that Ms. Go has been discriminated against, please contact NERC at (702) 486-7161 and/or the EEOC at (702) 388-5099. If anything medically changes in the future, please don’t hesitate to contact our o ce for a reassessment. If you have any ques2ons, please don’t hesitate to contact me. Thank you Bill. Thank you, Letty. Bill Livolsi On Nov 28, 2018, at 3:01 PM, Letty Bonilla > wrote: Hi Bill, I apologize for my delayed response and because I did not get back to you when I said I would…..thank you for following up. If you can please allow me un2l the end of this week to get back to you I would appreciate it. Thank you. Letty Bonilla Manager, Office of Diversity Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page78 76ofof94 92 Manager, Office of Diversity Clark County (702) 455-4667 Ms. Bonilla, It’s been two weeks since we met, so I’m checking in. I know you asked for some time to review Elaine’s file, but I was wondering if you could give me an estimated timeline for completion of your review. Thank you, Bill Livolsi on behalf of Elaine Go On Nov 14, 2018, at 1:31 PM, Bill Livolsi <wlivolsi@gmail.com> wrote: Letty, Yesterday, you acknowledged that Elaine does have a medical condition and that thinking, communication, and work were all major life activities. However, you stated that, as Elaine’s panic attacks were mainly triggered by her supervisor, they were therefore not due to a disability. Please see the attached PDF, especially Ted Lendis’s email of 11/1. In this email thread, Ted Lendis points to a perceived communication issue between Elaine and two of her Senior permit writers. Up until this point, Elaine’s supervisor had not been involved in the situation. As you can see, Elaine’s medical condition (Panic Disorder) is substantially limiting one or more major life activities (ability to think/communicate clearly) before Elaine’s supervisor becomes involved in the conversation. While Elaine’s supervisor’s comments then triggered a panic attack, the underlying communication limitation existed before he intervened. This is an example of the point I was trying to make yesterday. While Elaine’s supervisor may trigger panic attacks, the underlying disability causes the substantial limitations independent of his involvement. Elaine’s supervisor does not CAUSE panic attacks. Panic attacks, and the substantial limitations linked to them, are caused by panic disorder. Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page79 77ofof94 92 limitations linked to them, are caused by panic disorder. Elaine’s colleagues, who also report to her supervisor, are not similarly affected by performing the same job under the same supervisor in the same office. This is because Elaine’s colleagues do not have Panic Disorder and therefore do not have an underlying substantial limitation to communication. Therefore, Elaine’s disability is causing her to experience unequal workplace opportunities, which is why we asked the Office of Diversity to grant accommodations. You may also consider this example: if Elaine had lost her hearing, but were good at reading lips, she might be able to work effectively for several years. However, if Elaine’s supervisor then began covering his mouth when he spoke, and stopped giving instructions in writing, Elaine might request accommodations. This would be an example of a disability that can be triggered, or exacerbated, by a specific individual’s actions, but is not caused by that individual. Elaine’s Panic Disorder functions in a very similar way, which is what Elaine’s medical certification attempted to clarify. I therefore reiterate the point I made yesterday: Elaine is a qualified individual with a disability, who experiences a substantial limitation to one or more major life activities. This condition exists independent of Elaine’s supervisor. The Office of Diversity therefore must grant Elaine accommodations for her disability. Thank you, Bill Livolsi on behalf of Elaine go <20181103 silver state lendis.pdf> On Nov 9, 2018, at 2:39 PM, Letty wrote: Correc2on…..Tuesday, November 13th at 9am. Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page80 78ofof94 92 I will plan for Tuesday, November 6th at 9am. Thank you. Letty Bonilla Hi Letty, Tuesday works. I can be there around 9:00. Thanks. Bill Livolsi On behalf of Elaine Go On Nov 8, 2018, at 1:16 PM, Letty Bonilla wrote: Hello Elaine, please be advised that Ms. Kathleen Rodriguez is no longer working in the O ce of Diversity. Please direct any future communica2ons directly to me. Thank you. As to your request to meet with an OOD representa2ve in regard to concerns about your previously submi7ed request for an ADA accommoda2on and to discuss your current accommoda2on needs, I’m available as follows: Tuesday, November 13th through Thursday, November 15th in the morning from 8am to 10am. Please let me know if any of these dates/2mes work for you so we can schedule a mee2ng accordingly. (Please be advised that it may be necessary to request addi6onal medical informa6on.) Thank you. Letty Bonilla Manager, Office of Diversity Clark County (702) 455-4667 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page81 79ofof94 92 (702) 455-4667 Ms. Rodriguez, I did not request an intake packet. The details of Elaine’s medical condition have not changed significantly since her first accommodation request. I am requesting a meeting, as soon as possible, to discuss why Elaine’s accommodation request was denied and further discuss the urgent need to accommodate Elaine’s disability under the ADA. Please let me know your availability. Thank you, Bill Livolsi on behalf of Elaine Go Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page82 80ofof94 92 Exhibit M Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page83 81ofof94 92 Hello Bill, thank you for your con3nued pa3ence in this ma8er. This email serves as a follow up to our April 23, 2019 mee3ng. The mee3ng stemmed from informa3on you brought forth and wanted to present for reconsidera3on of OOD’s 2017 determina3on that Elaine Go did not meet the de ni3on of a person with a disability. The new informa3on you presented was that Elaine’s condi3on persists despite working under a di erent supervisor. Again, you requested that this informa3on be considered and evaluated for reconsidera3on of OOD’s determina3on as previously stated. I agreed to meet with you to discuss the updated informa3on despite not having updated medicals but it was explained to you that it may be necessary to request updated medicals in order to proceed with a reassessment. During our discussion on April 23, 2019, you indicated, however, that medically nothing has changed and that Elaine’s doctor would ques3on why new informa3on would even be requested because nothing has changed. Please know that I reviewed the medical informa3on on le including the new informa3on presented, i.e., that Elaine’s condi3on persists despite working under a di erent supervisor (and other informa3on discussed in our mee3ng). As previously communicated to you Bill, there is no ques3on that Elaine has a medical condi3on, which according to you con3nues to persist despite a di erent supervisor. Nonetheless, the ques3on is whether her condi3on substan3ally limits her in a major life ac3vity. The new informa3on does change that determina3on. Nonetheless, you are welcomed to submit updated medical informa3on for re-evalua3on if something medically changes. Thank you. Letty Bonilla Manager, Office of Diversity Ms. Bonilla, Do you still plan to have an answer for us today, as per your email of June 4? Thanks, Bill Livolsi Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page84 82ofof94 92 On Jun 4, 2019, at 5:11 PM, Letty Bonilla > wrote: Hi Bill, I appreciate your con3nued pa3ence in this ma8er. I did receive your emails men3oned below reques3ng for status update….my apologies for not having responded. It has taken me longer than I expected to get back to you but I want to make sure that I thoroughly review all of the informa3on you provided on April 23, 2019 (including informa3on on le). At this point Bill, I’m asking that you please allow me 3ll the end of next week to get back to you with an answer as to this ma8er (my goal will be sooner nonetheless). Thank your understanding. If you would like to discuss, please feel free to contact me. Ms. Bonilla, It has now been six full weeks since our meeting. I have not received any update from you on the status of Elaine Go’s disability accommodations. I previously emailed you on May 24th and May 13th to ask for updates, but did not receive responses. Can you please give me an update on the Office of Diversity’s progress so far? Sincerely, Bill Livolsi On A I will V.gov> wrote: Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page85 83ofof94 92 Ms. Bonilla, OK, I will see you at 3PM. As I previously stated several times, Elaine has no leave available. I will be meeting with you on Elaine’s behalf and holding her Power of Attorney. Elaine will not be present. Thank you, Bill Livolsi On Apr 23, 2019, at 9:32 AM, Letty Bonilla < gov> wrote: Hello Bill, I can meet with you and Ms. Go today 3pm. Thank you. On Apr 19, 2019, at 4:49 PM, Letty wrote: I have a 10am already scheduled. I would prefer something in the morning- say 10am? Let me know. Thanks. On Apr 19, 2019, at 4:37 PM, Letty Bonilla <BonillaL@ClarkCountyNV.gov> wrote: Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page86 84ofof94 92 On Apr 19, 2019, at 4:37 PM, Letty Bonilla > wrote: Bill, I’ve been in and out of the o ce and I’m scheduled o on Monday and have mee3ngs on Tuesday but I can make myself available Tuesday aYernoon. Will Tuesday aYernoon work? know. Thank you. On Apr 19, 2019, at 4:34 PM, Letty wrote: Hi Bill, can we meet next Wednesday, April 24th in the aYernoon at 3pm? Let me know if this works so that I can put it on my calendar. Thank you. Letty Bonilla Manager, Office of Diversity Clark County (702) 455-4667 Hi Letty, I am available to meet at your earliest convenience, including later today and all day tomorrow. Please let me know your earliest availability. Thank you, Bill Livolsi On Apr 15, 2019, at 8:37 AM, Letty wrote: Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page87 85ofof94 92 wrote: Hi Bill, as stated in my email to you dated February 19, 2019, we can schedule a mee3ng to discuss the new informa3on you shared with me regarding “….even when removed from the person ‘causing’ the condi<on, Elaine’s condi<on has persisted”. Please let me know when will be a good date/3me. Thank you. Ms. Bonilla, Please at least confirm receipt of the email below. Thank you, Bill Livolsi On Apr 9, 2019, at 8:16 PM, wrote: Ms. Bonilla, This afternoon I spoke to Darrell Harris, Supervisory Compliance Inspector at the Nevada Equal Rights Commission, about Elaine Go and her accommodation request. Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page88 86ofof94 92 According to Mr. Harris, NERC’s position is that, based upon the evidence presented, Elaine Go is a qualified individual with a disability under the definition provided in the Americans with Disabilities Act. Please note that NERC received the exact same medical certification that we provided to the Office of Diversity in November 2017. Elaine Go is therefore eligible for disability accommodations using the November 2017 medical information we provided to OOD. NERC further states that moving Elaine’s cubicle away from her supervisor constituted an accommodation, as did the granting of FMLA leave. Elaine wishes to inform the Office of Diversity that the provided accommodations are insufficient. She again asks the Office of Diversity to continue the interactive process by evaluating the other accommodations she requested in November 2017. We ask that you immediately inform the Department of Air Quality that OOD’s previous determination was incorrect. We also ask that you immediately reopen Elaine Go’s accommodation request so additional accommodations can be provided. Please let me know exactly how you wish to proceed. If you need time to consider your response, please respond immediately to confirm receipt of this email and provide a timeline for a full response. Sincerely, Bill Livolsi on behalf of Elaine Go On Apr 3, 2019, at 12:10 PM, Bill wrote: Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page89 87ofof94 92 Ms. Bonilla, I never received a response to this. Why does OOD require updated medical information from Elaine? Thanks, Bill Livolsi On Feb Ms. Bonilla, I understand. However, my question was: why does OOD need updated medicals? Thanks, Bill Livolsi Hello Bill, as previously stated, we can schedule a mee3ng to discuss the new informa3on you reference in your email below. But, please keep in mind that in light of the new informa3on, we will need updated medicals in order to complete a reassessment of Ms. Go’s Request for accommoda3on. Let me know if you want to proceed with the mee3ng. Thank you. Letty Bonilla Manager, Office of Diversity Clark County (702) 455-4667 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page90 88ofof94 92 Ms. Bonilla, In what way is Elaine’s last medical certification lacking? I have attached a copy for your reference. Please respond as soon as possible. Thank you, Bill Livolsi on behalf of Elaine Go Hello Bill, hope that you are doing well. In light of your statements below “…even when removed from the person “causing” the condition, Elaine’s condition has persisted” and wherein you further state that this should constitute new or updated medical information, I would like to meet with you and Ms. Go to discuss this but please understand that our Office will need updated medicals in order to complete a re-assessment of Ms. Go’s request for an accommodation. Please let me know when it is a good date/time to meet to discuss the new information you present below. Thank you. Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page91 89ofof94 92 Elaine Go Letty, Please let me know if you will be re-evaluating Elaine’s claim in light of the clarifications I made in my last email. Thank you. Regards, On Jan 28, 2019, at 9:54 AM, Bill Livolsi Ms. Bonilla, As we discussed when I met with you on November 13, 2018, OOD believes that Elaine does not have a disability because, despite having a medical condition that substantially limits one or more major life activities, you feel that the condition is “caused” by the situation at work, specifically Elaine’s supervisor. At the time, I stated that Elaine’s condition is caused by the underlying medical problem, while the situation at work only serves to trigger it. My most recent email of January 17, 2019 demonstrates this conclusively. Elaine was assigned to a different supervisor on January 3, 2019. This supervisor has no history of conflict with Elaine and by all accounts they get along well. However, Elaine’s panic attacks have persisted. This shows that the Office of Diversity’s assessment is incorrect — even when removed from the person “causing” the condition, Elaine’s condition has persisted. This should constitute new or updated medical information and should therefore cause the Office of Diversity to re-assess Elaine’s qualification under the Americans with Disabilities Act. Elaine has stated several times that she would be more than capable of performing her job from home on Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page92 90ofof94 92 than capable of performing her job from home on certain days when her condition flares up. Because of OOD’s decision, this option is not available, and Elaine is forced to use FMLA instead. This results in lost work time, depletion of Elaine’s FMLA balance, and lost pay. An accommodation would be beneficial not only to Elaine, but also to DAQ. However, OOD is unwilling to discuss potential accommodations, because you maintain that Elaine is not disabled. Elaine has nearly depleted her FMLA for the year. She currently has 34 hours remaining in her allotment, at which point she will not be entitled to any additional leave until September 2019. DAQ management have stated several times that any requests for Leave Without Pay (LWOP) will be denied. Elaine has already used Catastrophic Leave this year, and even if this option were available, DAQ management is still allowed to deny the underlying LWOP request. Elaine is likely to face discipline or termination if accommodations are not granted. In December 2017, DAQ Director Marci Henson stated that her decision to deny Elaine’s LWOP requests is directly linked to OOD’s assessment that Elaine is not disabled. Therefore, OOD’s decision has not only denied Elaine the accommodations she is entitled to, but also altered the perception of DAQ management and caused significant harm to Elaine. I ask that you consider my email of January 17, 2019 as updated medical information. Elaine has already provided two medical certifications from her physician. She does not have the resources to obtain a third — she has very little FMLA leave remaining, has not accrued sufficient PTO to see her physician, and cannot afford to pay for updated ADA paperwork due to missing 3 months of pay while on FMLA leave. Obtaining another signed ADA packet would constitute a hardship. You previously stated that we are welcome to appeal your decision to the Nevada Equal Rights Commission. With respect, this is not a realistic option for Elaine or other County employees who are struggling to keep their jobs. Elaine appealed to NERC in October 2017, and NERC was unable to assign an investigator until October 2018. That investigation is Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page93 91ofof94 92 still ongoing. By asking employees who are already struggling to wait more than a year for a second opinion, you are doing irreparable harm and causing a hardship for employees who assert their rights under the Americans with Disabilities Act. Please consider the information above and get back to me as soon as possible. If you do not feel you are able to evaluate Elaine’s information impartially, I encourage you to assign the case to other personnel. Thank you, Bill Livolsi on behalf of Elaine Go On Jan 25, 2019, at 6:14 PM, Letty Bonilla > wrote: <B Hello Bill, I apologize for my delayed response to your email communication below. Please know that if Elaine has any new or updated medical information, please submit directly to me and/or Office of Diversity (OOD) for evaluation. As previously communicated to you, OOD's assessment of Elaine Go's request for accommodation and OOD's determination was made in part based on the medical information that we currently have on file up to this point. Therefore, if there is no new or updated medical information for evaluation, I encourage you to please continue to work with Risk Management in regard to FMLA and/or other leave options that may be available and/or Elaine's department administration as may be necessary. As always, if you have any questions or wish to speak to me, feel free to give me a call. Thank you. Letty Bonilla Manager, Office of Diversity Clark County (702) 455-4667 Case Case2:19-cv-01775-RFB-DJA 2:19-cv-01775-RFB-DJA Document Document46-1 47 Filed Filed11/03/20 11/02/20 Page Page94 92ofof94 92 -----Original Message----- Ms. Bonilla, I am writing on behalf of my wife, Elaine Go, an employee of the Clark County Department of Air Quality. You previously decided that Elaine’s medical condition did not qualify as a disability due to its connection to her supervisor. Elaine has been assigned a new supervisor since the beginning of this year. The panic attacks have persisted. Elaine has now nearly depleted her FMLA allowance for the year and has been using her sick and vacation leave as quickly as it is accrued. If this continues, she will not be able to attend necessary treatment appointments due to lack of available leave. I ask, again, that you revisit your decision to deny Elaine the disability accommodations she has sought since September 2017. Regards, Bill Livolsi <20171108 return-work-ada.pdf>

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